Tuesday, February 7, 2012

What happened to the NFL's HGH Testing Policy?

Penalty Flag! Excessive Celebration!  
The NFL and NFLPA should have taken the advice from"Pulp Fiction" character, Winston Wolf', instead of being so quick to congratulate themselves on being the first professional sports league to collectively bargain for Human Growth Hormone (HGH) testing.  Much to Commissioner Goodell's displeasure, the NFL and NFLPA were not able to implement HGH testing in the just concluded NFL Season. Even though they agreed to start testing for HGH in principle, however an HGH test has yet to be agreed to in any particularity.

During a pre-Super Bowl press conference, NFLPA Executive Director DeMaurice Smith's stated that HGH testing discussions are ongoing but there is no guarantee that an agreement will be reached before the 2012 NFL season. In fact, Smith declared:
"No one will bully us into a test"

But, I would be remiss in pointing out that no one is bullying the NFLPA into HGH Testing.  The union agreed to implement HGH testing as part of the collective bargaining process.  This acknowledgement appears under Article 39 'Players' Rights to Medical Care and Treatment', Section 7. Substance Abuse, (b) Policies:[Emphasis added]
The parties confirm that the Program on Anabolic Steroids and Related Substances will include both annual blood testing and random blood testing for human growth hormone, with discipline for positive tests at the same level as for steroids.  Over the next several weeks, the parties will discuss and develop the specific testing of samples, the scope of review of the medical science, and the arbitrator review policy, with the goal of beginning the testing by the first week of the 2011 regular season.
The NFL and NFLPA already are arguably violating their collective bargaining agreement. "Several weeks" passed and HGH testing was not implemented prior to the first week of the 2011 regular season.  Does that mean that the NFL and NFL commissioner Roger Goodell can unilaterally implement a form of HGH testing since they did agree to test for HGH and have outlined the penalties for testing positive (same as anabolic steroids)?

Many players are still uncomfortable with the idea of blood testing. Therefore, Smith and the NFLPA would likely aggressively fight against the unilateral implementation of blood testing. Smith and the NFLPA  would likely argue that this section is too vague and there was an understanding that not until specific procedures are developed can the NFL commence testing. The NFLPA would bolster their argument that the HGH Testing procedures are mandatory subjects of collective bargaining by pointing to the CBA's conditional language, which dictates what policies would be followed prior to and pending the agreement on testing procedures. Article 39, Section 7(b) continues:
Pending agreement by both parties regarding the implementation of this program of blood testing, and such other policy amendments as the parties may agree upon, the Policy and Program on Substances of Abuse and the Policy on Anabolic Steroids and Related Substances, will remain in full force and effect as each existed during the 2010 season.
They would argue that the Commissioner cannot unilaterally implement HGH testing since they agreed that the 2010 Program on Substances of Abuse and Policy on Anabolic Steroids and Related Substances, which does not include HGH testing, is the only policy that remains in full force and effect until they have agreed on the particularities of HGH testing.

So that leads to the question, will the NFL and NFLPA ever implement HGH testing?  Plenty of people, including Washington politicians, will be keeping an eye on this development during the off-season.

Hopefully other commissioners and professional sports leagues have learned from Commissioner Goodell's blunder,  that merely agreeing to an economic structure of dividing the money should not end a labor disagreement.   One should not rush to end the CBA process prior to meticulously agreeing to even the most minutiae of details in all other policies that are mandatory subjects of collective bargaining.

No comments:

Post a Comment